Requesting Age-Identifying Information: Is Your Company’s Application Process Compliant with JAFA?

Passed by the Colorado State Legislature during the 2023 Regular Session, the Job Application Fairness Act (“JAFA”; SB 28-058) prohibits employers from requiring certain age-related disclosures on initial employment applications. JAFA places a limitation on initial employment applications, prohibiting employers from requesting or requiring applicants to provide their “age, date of birth, or their dates of attendance or graduation from an educational institution”. However, employers may require copies of certifications, transcripts, and other materials, as long as the applicant is notified that they may redact information that could identify their age. This legislation mirrors the requirements in Colorado’s Chance to Compete Act, which prevents employers from inquiring into, or requiring disclosure of, an applicant’s criminal history on an initial employment application.

Employers may require verification of compliance with age requirements set by federal or state law or regulation, or other bona fide occupational qualifications pertaining to public safety. However, such verifications required at the initial application stage must not necessitate disclosures of age, date of birth, or graduation/attendance dates.

JAFA specifies that the Act does not create or authorize a private cause of action. When an individual is aggrieved by a violation of JAFA, they are instructed to file a complaint with the Colorado Department of Labor and Employment (“CDLE”). If the complaint is filed within one year of the alleged violation, then the CDLE will investigate, unless the complaint is determined to be without merit. If the CDLE determines that a violation has occurred, they will issue penalties to the employer in question. Possible penalties range from a warning or compliance order to a $2,500 civil penalty for a third or subsequent violation. JAFA specifies that each distinct job posting violating the statute constitutes a separate occurrence of a violation. This could result in significant financial penalties if a company has violated the law in multiple job postings. Finally, JAFA instructs the CDLE to adopt rules clarifying the procedures for handling complaints filed against employers. JAFA will go into effect on July 1, 2024.

Colorado has the second fastest ageing population in the country. The legislature has been making serious efforts to facilitate fair hiring, and now to reduce age discrimination in the labor market. It is important for Colorado employers to review their job postings, advertisements, employment applications, and interview questions before summer 2024. Wells Anderson & Race, LLC’s team of experienced employment lawyers can advise your business on how to maintain compliance during the application process under JAFA. Contact Katie Pratt or Chelsie Smith for additional information.

*This blog post was authored by Wells, Anderson & Race, LLC’s Summer Associate, Grace Detwiler.


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